The Prosecutor filed a document setting out the facts and circumstances justifying a legal re-characterisation of William Ruto’s criminal responsibility.
The Ruto/Sang Trial Chamber directed the parties to give their views on the impact on the case of the Kenyan Parliament’s motion to withdraw from the ICC- particularly with respect to in-court protective measures for witnesses. The Prosecutor, Defence and Common Legal Representative all filed replies.
Nigeria and Ethiopia also joined the bandwagon of African states seeking to enter the appeal proceedings in the Ruto/Sang case. The appeal concerns the decision permitting Ruto to be absent from large parts of his trial. The Appeals Chamber directed the Prosecutor and the Defence to give views on the Nigerian and Ethiopian applications. The Prosecutor gave her response, asking for the requests to be rejected. The defence asked the Appeals Chamber to accept the states’ requests.
After being allowed to give their views, the other five East African countries- Burundi, Rwanda, Uganda, Tanzania and Eritrea- filed joint amicus curiae observations. The Prosecutor replied, asking the court to dismiss the observations.
In the wake of the Westgate Mall massacre, the Ruto defence asked the Appeals Chamber to review its order granting suspensive effect to the Trial Chamber decision on Ruto’s presence. The suspensive order meant that Ruto had to be present throughout his trial until the appeal was heard and determined. The defence argued that as Deputy President the mandate for internal security fell under his docket, necessitating his presence in Kenya to deal with the terrorist attacks.
The Appeals Chamber rejected the request.
The Ruto/Sang Trial Chamber sought responses to the application for appeal filed by the Ruto Defence. The Defence had appealed the decision by the Chamber to allow the Prosecutor to add two more witnesses to her list.
The Chamber also asked the Prosecutor and the CLR to give more detail to their applications seeking a re-characterisation of Ruto’s individual criminal liability. The OTP wants to change it’s charges from indirect co-perpetration to forms of accessory/contributory liability
Lots has happened in the last week or so, I’ll give a brief summary.
We’ve received more clarity on the type of misconduct and specific allegations that the defence is making against the OTP’s lawyers (I remember wondering why Muthaura’s lawyers were so quick to hire a former OTP counsel to assist in the preparation of its defence; now I wonder no more). The defence teams filed recent documents detailing their accusations that the several members of the OTP team withheld crucial evidence. One defence team called it a ‘win at all costs’ attitude. Clearly in there Kenyatta/Muthaura case, there is a full-court press against the OTP: challenging its evidence, its case theory, its case preparation and the ethics of its lawyers.
The Trial Chamber held a status conference on 18 March. During the conference, the discussion was about the effect of the withdrawal of charges against Muthaura on the Kenyatta case. The Judges were interested to hear what the participants thought about the element of the common plan which must be proven for there to be indirect co-perpetration liability. In other words, if Kenyatta and Muthaura were charged as indirect co-perpetrators it means the OTP had to prove that each made essential contributions such that one or the other would have frustrated the common plan by failing to perform their essential part. Therefore, the defence argument is that if Muthaura’s essential contribution is unproven/non-existent, then it follows that the common plan theory must also fail and this fatally undermines the Kenyatta case (at least in relation to this mode of liability).
The Prosecutor challenges the ‘essential contribution’ test as well as whether the collapse of the case against one indirect co-perpetrator can directly affect the case against the others in such a significant way. She wants the focus to be Kenyatta’s contribution, not the absence of Muthaura’s contribution. It seems that Judge Wyngaert has her own reservations about the mode of liability called ‘indirect co-perpetration’ which she made clear in her separate opinion in the Ngudjolo case. However, she and the other judges offered the Prosecutor a potential get-out-of-jail card by asking whether they might consider trying Kenyatta as an indirect perpetrator (i.e. drop the need for common plan, joint control theory, etc. that comes with having a co-perpetrator).
Further written submissions will come and the Chamber will rule on what happens to the Kenyatta case.
In addition, the Trial Chamber has now officially accepted the dropping of the charges against Francis Muthaura
Finally, as if there were not enough developments this case, witness OTP-8 in the Ruto/Sang case apparently felt the pangs of a heavy conscience and decided to unburden it by revealing that testimony the witness gave against Mr. Ruto was untrue. Unlike the OTP-4 issue in Kenyatta/Muthaura which had been simmering since the confirmation proceedings (when the defence first publicly raised questions about OTP-4), one can’t help but see a correlation between OTP-8’s Damascus moment and the new political dispensation in Kenya. Perhaps the correlation is simply a coincidence. We shall see.
Today the ICC acquitted Mathieu Ngudjolo Chui. He was on trial for allegedly committing war crimes in the DRC. This acquittal is important not only as another dubious first- the summary suggests that the judges were dissatisfied with the quality of the prosecution’s witness testimony- but because of how it may guide other trial chambers in the standard of review of evidence and modes of liability.
One member of the trial court, Judge Wyngaert, was particularly troubled by the elements of indirect co-perpetration and the application of the so-called control theory imported from German Legal doctrine. Her analysis of the engineworks of international criminal law theories of liability will probably interest lawyers more than non lawyers. But these same issues of modes of liability are being challenged by at least one defence team of the Kenyan Accused. So I’ll blog more on this once I’ve looked through the various judgements (so far the main judgement is french only).
Another important lesson from the Ngudjolo acquittal is just how problematic joint trials can become. The Prosecutor originally charged Ngudjolo and Germain Katanga separately. A decision was then taken to join the two cases for trial. Shortly before Ngudjolo’s acquittal, the Judges again separated the two cases. We’ll know the reasons fully once the Katanga case ends but it is food for thought in view of the way the Kenya cases have been joined for trial.
UPDATE 22 DECEMBER 2012: Another reason why Judge Wyngaert’s Opinion is vital is that she is one of the trial judges in the Kenya cases where, among other things, Uhuru Kenyatta and Francis Muthaura are charged as indirect co-perpetrators of crimes against humanity. Will her strong views on the nature of indirect co-perpetration affect how the parties (Prosecutor and Defence teams) approach the trial?
UPDATE 23 DECEMBER 2012: Ngudjolo’s acquittal may also cause ethnic turbulence in his home province of Ituri. This is because some of the fighting in the 2002-2003 Congo conflict took the form of ethnic war between Hema and Lendu within Ituri Province. Now a Lendu leader, Ngudjolo, has been acquitted whereas Thomas Lubanga who led a largely Hema militia was convicted. How will it play in the ‘silent war’ of histories where each ethnic group writes it’s own history of the conflict casting itself as an innocent victim responding to atrocious aggression by the enemy? How will it play in terms of perceptions of the court where aggrieved Hemas may feel themselves ‘victims’ of international justice that has convicted one of their sons, while acquitting a son of the perceived Lendu enemy?
The ethnic dimension is also present in the Kenya case and remains a thorny question that must be addressed throughout and after the trials. While PEV did not degenerate into all-out war at the level of the Ituri conflict, how would an acquittal in one case be met if it is accompanied by a conviction in the other? Will it feed the sense of victimhood amongst Kalenjin, Kikuyu or Meru? Or will it show that international justice is fair-handed and each accused had an equal chance before the court?